Non-Federal Infrastructure Projects and the U.S. Army Corps of Engineers in the Federal Courts: The Dakota Access and Keystone XL Pipelines

The “Corps” of the Issue

The first case involves the Keystone XL crude oil pipeline, a 1,200-mile, $7 billion pipeline that would carry oil from Canada to Nebraska.¹ The Keystone XL project has faced controversy, political battles, and litigation nearly since the time it was proposed roughly 12 years ago. In the summer of 2020, litigation over the project resulted in a Montana federal court ruling invalidating a key nationwide permit (NWP) issued by the Corps and used by infrastructure projects throughout the country.² The court found that in issuing the permit, the Corps violated the Endangered Species Act (ESA). That ruling is now before the U.S. Court of Appeals for the Ninth Circuit³ (after a brief sojourn to the U.S. Supreme Court⁴), and it merits careful consideration by project developers as its full ramifications unfold in the ongoing litigation and the Corps continues implementation of its NWP program in the midst of that ongoing litigation.

The second case involves the Dakota Access Pipeline (DAPL), which also has been the subject of public controversy.⁵ Carrying oil from North Dakota to Illinois, the $4 billion pipeline crosses under a lake in South Dakota that is considered sacred by the Standing Rock Sioux Tribe and that serves as the Tribe’s main source of drinking water. The federal easement for that water crossing was the focus of opponents’ efforts to stop the pipeline. This past March, the U.S. District Court for the District of Columbia found that the Corps’ decision to issue that easement was legally insufficient.⁶ To the surprise of many observers, after briefing on remedy, the district court in July ordered that the pipeline operator must cease operations and drain the pipeline of oil during the renewed regulatory review process.⁷ After further proceedings, the U.S. Court of Appeals for the D.C. Circuit at least temporarily relieved the operator of the obligation to cease operations and is hearing the appeal of the district court’s order on an expedited basis.⁸ Meanwhile, the district court is currently considering the Tribe’s renewed bid for injunctive relief.⁹

As of the time of the writing of this article, both of these cases are still in active litigation, and there may be further developments by the time of publication. With that caveat, what follows is a discussion of key elements of these cases to date, along with considerations for future infrastructure projects.

Keystone XL Pipeline

The Keystone XL project illustrates some of the challenges faced by developers of large infrastructure projects. Over the years, the project has been subject to strong opposition that has played out in both the executive and judicial branches of the federal government, driven by environmental and social justice activism and increased concern about climate change. While a change in presidential administration allowed the project to move forward in 2017 after a 2015 stall, a subsequent change in administration may have implications as well. Although opposition to pipeline construction is not new, the public debate over construction of Keystone XL brought environmental issues surrounding pipeline projects further into mainstream political discourse.

The Facts: Keystone XL

Keystone XL is a proposed, 1,200-mile, crude oil pipeline intended to carry product from Hardisty, Alberta, to Steel City, Nebraska, where it would connect with existing pipeline infrastructure to carry the product to refiners on the Gulf of Mexico. The project, which has been in development and under construction for nearly 12 years, began to face legal challenges in the early 2010s from tribal groups opposed to the project on cultural and environmental grounds and from environmental organizations challenging the legality of the particular permitting process used to authorize the project. What followed was a roller coaster of approvals and denials, some as a direct result of changes in the White House and others resulting from environmental litigation initially regarding compliance with the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the ESA but now centered on the ESA.

The Corps’ Regulatory Authority: NWP 12 and ESA Section 7(a)(2)

Section 404 of the CWA authorizes the Corps to allow discharges of dredge and fill material into waters of the United States through the issuance of permits. Individual permits are issued on a case-by-case basis after a process that involves site-specific documentation and review and additional administrative process. The CWA also authorizes the Corps to issue general permits for categories of activities that are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.”¹⁰ To that end, the Corps has issued a series of NWPs that are aimed at advancing Congress’s goal by “regulat[ing] with little, if any, delay or paperwork certain activities having minimal impacts.”¹¹ Currently, there are 52 NWPs that are used to authorize thousands of regulated activities around the country every year.

At issue in the Keystone XL litigation is NWP 12.¹² NWP 12 authorizes discharges of dredged or fill material into waters of the United States in connection with the construction, maintenance, repair, and removal of utility lines and associated facilities, which include crude oil pipelines such as Keystone XL.¹³ Because no general permits may be in effect for longer than five years, the Corps frequently reissues the NWPs.¹⁴

To use NWP 12, a project developer must meet numerous conditions; some are specific to NWP 12 itself, and 32 general conditions are applicable to the whole set of NWPs, including NWP 12.¹⁵ Relevant here, General Condition 18 requires potential nonfederal permittees to submit to the Corps a preconstruction notification (PCN) ‘‘if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat.’’¹⁶ The Corps evaluates the PCN, prepares a biological assessment, and makes either a “no-effect determination” or a “may-effect determination” for the proposed activity “for the purposes of ESA Section 7.”¹⁷ Section 7 requires the Corps to ensure that any action it authorizes is not likely to jeopardize the continued existence of any listed endangered species or destroy or adversely modify designated critical habitat.¹⁸ If the Corps makes a no-effect determination (and other conditions are met) because there will be no consequences to listed species or critical habitat, it will verify that the project can proceed using the NWP with no further ESA process.¹⁹ If the Corps makes a may-affect determination, it initiates consultation under section 7 of the ESA.²⁰ If consultation is required, the Corps consults with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (together, the Services), depending on the protected species at issue. Notably, the initial might-effect threshold for a PCN is more stringent than the may-effect standard that triggers formal ESA consultation. Because might means “having less probability” than may, the first level of review requires an applicant to notify the Corps even if the activity likely does not reach the level of “may effect.”²¹ This tiered approach is meant to ensure that the Corps does not inadvertently miss impacts that would trigger ESA section 7 consultation.²² In this way, General Condition 18 effectuates the Corps’ obligations under ESA section 7 by ensuring that the Corps considers potential impacts to listed species in the context of a specific project.²³

When consultation is required, the process usually begins with informal consultation, and the relevant agency (here, the Corps) typically prepares a biological assessment to determine whether the proposed action is likely to adversely affect a listed species.²⁴ If the federal agency determines via the analysis in the biological assessment that a proposed action is likely to adversely affect a listed species, then the action agency must initiate formal consultation.²⁵ At the conclusion of formal consultation, the Services issue a written “biological opinion” that includes “[a] detailed discussion of the environmental baseline of the listed species and critical habitat” and “[a] detailed discussion of the effects of the action on listed species or critical habitat”²⁶ and concludes with the Services’ opinion as to whether the proposed action is likely “to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species,” as required under section 7(a)(2).²⁷

When the Corps reissued the NWPs in 2017, it determined that ESA consultation with the Services was not required because the reissuance of NWPs has “no effect” on ESA-listed species or critical habitat—per its terms, NWP 12 does not authorize any activity that might affect listed species pursuant to General Condition 18.²⁸

The Litigation: Presidential Permitting and NWP 12

In addition to this regulatory framework, development of the Keystone XL pipeline implicates numerous other federal requirements, and project opponents have advanced different challenges to those requirements in two separate cases.

First, because the project crosses the international border with Canada, it requires a presidential permit from the State Department (State) conditioned on State’s determination that the approval would serve the national interest.²⁹ In 2015 under then President Obama, State rejected the pipeline, finding that it would not serve the national interest.³⁰ In 2017, at the direction of President Trump, State revived the project by approving the presidential permit for the project’s construction and operation at the international border.³¹ However, in November 2018, U.S. District Judge Brian Morris of the U.S. District Court for the District of Montana halted the project, finding that State had violated NEPA and the ESA in making the determinations that led to its issuance of the presidential permit.³² On March 19, 2019, President Trump issued another presidential permit directly authorizing construction of the pipeline; this permit supplanted State’s permitting process that Judge Morris had ruled insufficient in November 2018.³³ In April 2020, the district court heard argument on the government’s motions for summary judgment and plaintiffs’ request for injunctive relief, but, as of this writing, it has yet to issue a ruling. Meanwhile, plaintiffs are seeking to amend their complaint for a third time.

Second, the litigation at issue here, Northern Plains Resource Council v. Army Corps of Engineers (Northern Plains), began on July 1, 2019, when a group of environmental organizations sued the Corps, alleging that the Corps had improperly reissued NWP 12 in 2017 and, derivatively, improperly approved the Keystone XL project using NWP 12.³⁴ As Keystone XL moved through the regulatory process seeking project-specific verification under NWP 12,³⁵ on April 15, 2020, Judge Morris found that NWP 12 was invalid because it failed to satisfy the ESA, again halting the project.³⁶ Judge Morris’s ruling was particularly significant because not only did it prevent Keystone XL from using NWP 12, it purported to vacate NWP 12 in its entirety. Though Judge Morris later narrowed his ruling to allow NWP 12 use for certain utility projects, the ruling continued to apply to “new oil and gas pipelines.”³⁷ As discussed further below, the U.S. Supreme Court has stayed the ruling as to oil and gas projects other than Keystone XL, pending the resolution of the appeal in the Ninth Circuit.

Arguments and Decisions in Northern Plains

Though the plaintiffs in Northern Plains challenged the Keystone XL project on multiple grounds, the primary issue—for now—is whether the Corps should have initiated programmatic consultation under the ESA with the Services before it issued NWP 12 in 2017.³⁸ Plaintiffs requested that the court “declare NWP 12—and its specific application to Keystone XL—in violation of” the relevant environmental laws, and “enjoin use of NWP 12 to authorize construction of Keystone XL.”³⁹

The Corps responded that when it reissued the NWPs, it did not authorize any particular project. Without subsequent action from the Corps, neither NWP 12 nor the Corps’ issuance thereof authorizes or approves projects that might affect listed species pursuant to General Condition 18 without first considering whether consultation is required.⁴⁰ As such, the reissuance of NWP 12 has “no effect” on ESA-listed species or critical habitat that would trigger formal consultation under ESA section 7.⁴¹ Project developer TC Energy, an intervenor in the litigation, made substantially similar arguments.⁴²

In April 2020, Judge Morris ruled that the Corps violated section 7 of the ESA when it reissued NWP 12 in 2017 without undertaking consultation.⁴³ The court found that the Corps could not rely on General Condition 18 and project-specific review to satisfy the ESA’s section 7 consultation requirements.⁴⁴ The court remanded NWP 12 to the Corps for compliance with the ESA, vacated NWP 12 pending that process, and “enjoin[ed] the Corps from authorizing any dredge or fill activities under NWP 12.”⁴⁵

Because this ruling would have forbidden use of NWP 12 for any utility project, whether that project is an oil pipeline, electric transmission line, or broadband internet line, numerous parties requested that the court reconsider its order. In May 2020, the court affirmed its order but narrowed its reach in two ways. First, it modified the order to vacate NWP 12 only as it relates to the construction of new oil and gas pipelines pending completion of section 7 consultation for the reissuance of NWP 12.⁴⁶ Second, the modified order allows NWP 12 to remain in effect during the remand to the Corps for routine maintenance, inspection, and repair activities on existing NWP 12 projects.⁴⁷

Ongoing Litigation and Implications

The Corps and TC Energy appealed Judge Morris’s order to the Ninth Circuit and requested an emergency stay of the order until the appeal is resolved.⁴⁸ When the Ninth Circuit denied the stay, the appellants sought emergency relief from the U.S. Supreme Court. On July 6, 2020, Justice Kagan granted the stay, in part by limiting the reach of the order to Keystone XL.⁴⁹ Thus, the order still prevents further construction on Keystone XL, but, depending on the outcome of the appeal before the Ninth Circuit, the order does not (yet) apply to other pipelines.

In the meantime, TC Energy has informed its investors that it plans to “pursue other permitting means to gain regulatory authorization to construct the pipeline across wetlands and waterbodies.”⁵⁰ As explained above, the Corps also has authority to issue individual permits under the CWA, which can be sought when NWPs are not applicable. This alternative permitting framework may be one way of moving forward with the project and may therefore offer some solace to the many stakeholders who stand to benefit from the pipeline. However, a change in administration after the November 2020 election would have implications for continued federal review of the project for a variety of reasons. For example, President-Elect Joe Biden’s campaign policy director has said that the nominee would revoke the presidential permit issued earlier by President Trump.⁵¹

The Corps appears to be very committed to the existing framework by which the Corps accounts for impacts to ESA-listed species through project-level review. On September 15, 2020, the Corps published its proposal for issuing and reissuing NWPs; it took the exact same approach to ESA compliance as the 2017 NWPs under scrutiny in the Northern Plains case. The Corps is continuing to rely on the process triggered by General Condition 18, whereby permittees submit a PCN when a project “might” impact an endangered species, and the Corps makes either a no-effect determination or a may-effect determination that leads to section 7 consultation.⁵² If the proposed NWPs are adopted with this compliance approach, they will supersede the version of NWP 12 that Judge Morris vacated and that is on appeal to the Ninth Circuit. However, because the proposed NWPs rely on the same logic, the Ninth Circuit ruling will still have implications for ESA compliance, and plaintiffs will likely treat Judge Morris’s orders as a template for subsequent litigation against Keystone XL and other projects that rely on NWP 12.

The Dakota Access Pipeline

DAPL has faced staunch resistance from tribal groups and environmental activists. By 2016, the legal challenges and on-the-ground protests against the construction of the pipeline in North Dakota became a high-profile topic in both national and international media. The complex project and litigation history of DAPL provides a useful lesson as to potential risks and complexities that can arise in development of large infrastructure projects.

The Facts: DAPL

In 2014, Dakota Access LLC, a subsidiary of Energy Transfer Partners, announced plans to build the nearly $4 billion DAPL.⁵³ The proposed pipeline would carry half a million barrels of oil daily from the Bakken oil fields in North Dakota to a terminal in Illinois.⁵⁴ For the most part, DAPL was authorized and built pursuant to state laws. However, the Corps had authority over various water crossings under the Rivers and Harbors Act (RHA) and the CWA, as well as over federal lands and flowage easements, including at one crossing under Lake Oahe, a reservoir on the Missouri River.⁵⁵

In addition to requiring authorizations under section 404 of the CWA and section 10 of the RHA, DAPL also required permission under section 408 of the RHA and an easement allowing the project to cross federal lands or flowage easements acquired and administered by the Corps in multiple locations, including Lake Oahe.⁵⁶ The proposed authorizations triggered certain provisions of NEPA.

NEPA requires that environmental information be available and subject to comment, review, and analysis by officials and citizens prior to decision-making by federal agencies.⁵⁷ It establishes the procedures by which federal agencies must consider the environmental impacts of “major federal actions” when the statute is triggered.⁵⁸ NEPA requires agencies to prepare an environmental impact statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.”⁵⁹ An EIS is “a detailed statement by the responsible official” regarding, among other things, the “environmental impact of the proposed action” and “any adverse environmental effects which cannot be avoided should the proposal be implemented.”⁶⁰ To determine if an action requires an EIS, the agency may conduct an environmental assessment (EA)that briefly describes the proposal, examines alternatives, and considers environmental impacts.⁶¹ If the agency determines from the EA that the proposal is unlikely to have significant impacts on the environment, it issues a Finding of No Significant Impact (FONSI).⁶² If the agency determines that there may be significant impacts on the environment, it then prepares the more comprehensive EIS.⁶³ Courts review the adequacy of an EIS to ensure that the agency took a “hard look” at the environmental consequences of the proposed project.⁶⁴ Importantly, NEPA does not impose any substantive requirement on agency decision-making—it only requires that agencies consider environmental impacts, not necessarily avoid them.⁶⁵

In December 2015, the Corps sought public comment on a draft EA that evaluated the reasonably foreseeable environmental effects of DAPL’s proposed crossing under Lake Oahe and concluded that the “construction of the proposed Project [was] not expected to have any significant direct, indirect, or cumulative impacts on the environment.”⁶⁶ This was followed by a July 2016 final EA and mitigated FONSI, on the basis of which the Corps approved the pipeline’s crossing through the Lake Oahe reservoir and the issuance of an easement.⁶⁷ A mitigated FONSI is issued based on the commitment of the party requesting the permit that it will engage in certain mitigation measures to prevent any significant environmental impacts caused by the project, thus rendering an EIS unnecessary.⁶⁸ In DAPL’s case, the mitigated FONSI explained that the Corps had “coordinated closely with Dakota Access to avoid, mitigate and minimize potential impacts of the Proposed Action” and that Dakota Access was required to comply with mitigation measures set out in the EA.⁶⁹ Given those measures and the Corps’ evaluation of DAPL’s anticipated environmental impacts, the Corps concluded that the pipeline’s crossing at Lake Oahe would not “significantly affect the quality of the human environment” and that preparation of an EIS was therefore not necessary.⁷⁰

Challenging DAPL in Court

Two days after the release of the final EA, the Standing Rock Sioux Tribe filed suit against the Corps in federal court citing violations of the National Historic Preservation Act (NHPA), the CWA, and NEPA, and it sought emergency injunctive relief to halt construction.⁷¹ On September 9, 2016, Judge James Boasberg of the U.S. District Court for the District of Columbia rejected the tribe’s first attempt to block the project under the NHPA.⁷² Judge Boasberg described the United States’ relationship with the Indian tribes as “contentious and tragic” but found that the Standing Rock Sioux Tribe had not demonstrated that an injunction was warranted.⁷³ Nevertheless, immediately after Judge Boasberg’s decision, the Corps, in order to better assess the Tribe’s concerns, suspended the issuance of any authorization for construction “on Corps land bordering or under Lake Oahe until” the Corps could determine “whether it needs to reconsider any of its previous decisions regarding the Lake Oahe site under NEPA.”⁷⁴

Meanwhile, protests against DAPL began to escalate dramatically in North Dakota. Tensions between law enforcement and protesters heightened as officials moved in to clear out protesters setting up camp on private property, eventually turning violent after protestors began lighting fires on property near the pipeline.⁷⁵ Videos of the violent clashes went viral on social media, amplifying the conflict and generating heated discussions beyond just the legal issues surrounding the pipeline.⁷⁶

After further consideration, in December 2016 the Assistant Secretary of the Army for Civil Works, whose office oversees the Corps, announced that the Corps would not issue the easement and would prepare a full EIS to evaluate DAPL’s request.⁷⁷ However, in early 2017, the Trump Administration issued a presidential memorandum directing the expedited review and approval of the remaining portions of DAPL.⁷⁸ The presidential memorandum encouraged the Corps to consider the previously published final EA—one that concluded with a FONSI—sufficient to satisfy NEPA.⁷⁹ The Corps followed the recommendations in the presidential memorandum and approved the easement to cross Lake Oahe without preparing an EIS.⁸⁰ Dakota Access immediately began construction near the crossing under Lake Oahe.

Both the Cheyenne River Sioux and Standing Rock Sioux Tribes immediately requested Judge Boasberg to “issue expedited summary judgment” on their claim that the Lake Oahe easement decision, as well as the Corps’ NEPA analysis, violated the law.⁸¹ In particular, the Tribes argued that the Corps did not sufficiently consider the pipeline’s environmental impacts before granting Dakota Access permits to cross under Lake Oahe.⁸²

The pipeline went into operation on June 1, 2017. Two weeks later, on June 14, Judge Boasberg largely granted the Tribes’ motion for summary judgment, pointing out defects in the Corps’ NEPA analysis.⁸³ He found that although the Corps had substantially complied with NEPA in many areas, the Corps “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”⁸⁴ The court remanded the matter to the Corps to address the NEPA shortcomings but declined to halt ongoing operation of the pipeline in the meantime.⁸⁵

March 2020 Decision and Current Status

The Corps completed its remand analysis in February 2019, maintaining its position that an EIS was not required, while the Tribes argued that the Corps failed to remedy the NEPA violations on remand.⁸⁶ In March 2020, Judge Boasberg sided with the Tribes and found that the Corps, again, had not adequately addressed the defects in its NEPA analysis, stating that “too many questions remain unanswered” regarding the potential environmental impacts of the easement through Lake Oahe.⁸⁷ The court held that the Corps violated NEPA by determining that an EIS was not necessary and remanded the case once again, this time ordering the Corps to conduct a full EIS.⁸⁸

When the court remanded the case to the Corps to prepare an EIS in March, the court ordered separate briefing on the appropriate interim remedy—namely, whether the easement should be vacated and the pipeline emptied during the remand process.⁸⁹ After briefing, in July 2020 Judge Boasberg vacated the Lake Oahe easement and ordered that the pipeline be shut down within 30 days.⁹⁰ The court reasoned that “given the seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the court is forced to conclude that the flow of oil must cease.”⁹¹

Dakota Access immediately filed an appeal and emergency motion for a stay in the U.S. Court of Appeals for the District of Columbia Circuit.⁹² On August 5, 2020, the D.C. Circuit decided that DAPL did not have to be shut down and drained because Judge Boasberg had not made the necessary findings required for injunctive relief.⁹³ However, the D.C. Circuit did not take the broader step of overturning or staying Judge Boasberg’s vacatur of the easement.⁹⁴ The court stated that Dakota Access and the Corps failed to make a strong showing of likely success on the claim that Judge Boasberg erred in directing the Corps to prepare an EIS.⁹⁵

The “shutdown order” issue is now back before Judge Boasberg, while the D.C. Circuit is expediting legal arguments on both the merits of the vacatur decision and whether the Corps is required to conduct a more comprehensive review of DAPL and issue an EIS. In the meantime, the Corps announced that it would begin preparing the court-ordered EIS on September 4, 2020, in case it does not prevail on appeal; the EIS process is estimated to take 13 months to complete.⁹⁶ The Corps need not seek to cure Dakota Access’s encroachment on federal lands; the determination of whether to seek an enforcement action rests within the discretion of the Corps and the Department of Justice.⁹⁷ In the Status Report, the Corps stated that although it was not immediately recommending that the Department of Justice pursue an enforcement action against Dakota Access, it was not waiving its rights to do so.⁹⁸ It is likely that the Corps’ determination on whether to go forward with an enforcement action will factor in Judge Boasberg’s ruling on the Tribe’s injunction request, which is still pending. The Corps’ appeal of Judge Boasberg’s order also remains pending before the D.C. Circuit.

What to Watch for Down the Road: Implications of the Keystone XL and DAPL Cases

The precise implications of these cases are still uncertain as each remains in active litigation, including pending appeals. Regardless, the ramifications of these cases extend beyond oil and gas pipeline projects to any infrastructure project using the Corps’ NWP program (like Keystone) or subject to environmental litigation scrutiny of federal decision-making (like DAPL). The ultimate import of each project and its related legal proceedings on the timing and ease of project development could depend upon a complex mix of factors, including the outcome of the appeals, further judicial action, similar litigation in other courts, administrative and rulemaking actions by the Corps, a change in presidential administration, and even litigation over new rules implementing NEPA and defining the geographic reach of the CWA. It is difficult to make predictions. But, as the Corps says, “Essayons!”⁹⁹

The Road Ahead after Montana

As for the near-term implications of the Northern Plains decision in Montana, both the Corps and project opponents are taking actions in response. On September 15, 2020, the Corps proposed the issuance of a new round of NWPs that divide NWP 12 into three separate NWPs: one for oil and natural gas pipelines, one for electric and telecommunication lines, and one for lines conveying other substances.¹⁰⁰ While the Federal Register notice does not indicate that this proposed division is in response to the Keystone litigation, the Corps may be considering the best way to protect its broader permitting program—segregating the permits by infrastructure type in order to insulate others from litigation consequences arising from continued opposition to oil and gas projects. In addition, project opponents have utilized the Northern Plains decision in opposition to other oil and gas projects. Three cases pending in federal court in Texas seek rulings declaring that the Corps issued NWP 12 in violation of the ESA, based on the rationale advanced in Northern Plains.¹⁰¹ By the time this article is published, there may be more examples elsewhere.

One reaction that we have not seen—yet—is an alternate approach to ESA compliance by the Corps. Instead, as discussed above, the newly proposed NWPs rely on the same approach to satisfying section 7 of the ESA as the one found unlawful by the Northern Plains court in Montana. That position is well-grounded in the law, and the Corps is continuing to rely on and defend it—at least at this stage. The outcome of the presidential election may have implications for the Corps’ continued pursuit of its appeal, especially if it loses in the Ninth Circuit, and for its position on undertaking programmatic consultation. The last time the Corps attempted section 7 consultation for the NWP program—voluntarily—was in the Obama Administration. If the Corps changes course, either because of an adverse Ninth Circuit decision or a change in policy, it would likely pursue consultation for the entire NWP program, not just NWP 12. The consultation process, which would have to be undertaken with both Services, could result in procedural hurdles to the efficient reissuance of NWPs and added restrictions on the use of NWPs for various types of activities.

Further, unless the Corps ultimately prevails in decisive fashion or decides to undertake voluntary consultation for the NWP program, it would not be surprising to see future litigants advance the Northern Plains ESA argument in cases challenging the use of other NWPs—NWPs that may be relied upon for a broad swath of infrastructure-related activities such as activities related to construction of land-based renewable energy generation facilities, construction of linear transportation projects, temporary construction access, or maintenance and repair activities.

Are the District Court DAPL Decisions Just Bumps in a Long, Long Road?

Both of the district court’s recent decisions in the DAPL case stand out: its order to the Corps compelling preparation of an EIS before deciding whether to authorize placement of a short stretch of pipeline buried deep beneath a lake bed, and its decision vacating the easement and ordering the operating pipeline to be drained and shut down. While the latter is unprecedented in this type of case, the former is also noteworthy, especially in light of the Corps’ unique and narrow jurisdiction under various statutory provisions—jurisdiction that does not encompass regulation of pipeline safety. However, the import of the decisions may ultimately be cabined not only by action on remand and appeal, either via a win for the Corps or even a fact-specific loss, but by the particular facts of the underlying project and federal process as well as by the viability of new regulations implementing NEPA issued by the Trump Administration.¹⁰²

DAPL is not the first NEPA case the Corps has lost that implicates private development. Here, however, the Corps was already on its second try, and courts generally find corrected NEPA work sufficient after remand because the agencies generally make every effort to satisfy the court’s concerns. The fact that the court did not find the Corps’ additional review sufficient, when the Corps conducted extensive modeling and analysis of the potential for a spill and related impacts, feeds into one narrative that portrays some courts as straying outside the bounds of the law by interpreting NEPA’s obligations too expansively and imposing ever more onerous impediments to efficient decision-making. Whether that narrative continues to fit the procedural history in this particular district court will depend not only on the outcome of the appeal but also on the viability of the new regulations implementing NEPA, which substantively change the requirement upon which the court founded its decision, in part in response to judicial precedent.

With respect to the various merits issues in the DAPL appeal, one question of substantial interest to NEPA practitioners is the role of the D.C. Circuit’s 2019 decision in National Parks Conservation Association v. Semonite.¹⁰³ The district court in the DAPL litigation viewed that decision as announcing a seismic shift in the law, concluding that according to the D.C. Circuit, an agency not only had to consider whether effects of a proposed action were “highly controversial” in a substantive sense to determine whether impacts of an action may be significant so as to warrant an EIS, but also had to resolve that controversy.¹⁰⁴ If correct, this would indeed be a landmark shift in the law that layers substance on top of NEPA’s procedural requirements—an obligation to somehow resolve a purported technical controversy advanced by project opponents. The D.C. Circuit’s interpretation of its own earlier decision could have implications for numerous projects subject to review under NEPA.

However, even if the D.C. Circuit agrees with the district court’s analysis, the decision may be of limited import. The Council on Environmental Quality issued new NEPA regulations, which became effective September 14, 2020.¹⁰⁵ The new regulations eliminate the consideration of “controversy” because the concept is “subjective and is not dispositive of effects’ significance.”¹⁰⁶ Of course, the ultimate staying power of these regulations, and how they will be construed by the courts, is another unknown; they are subject to multiple challenges around the country and may be high on the list of regulations revisited by a Biden Administration, if they are not rescinded by Congress under the Congressional Review Act.¹⁰⁷

With respect to the order vacating the easement and shutting down the pipeline, its significance beyond the flurry of press and pleadings that it triggered is as of yet unclear. As the government has argued and the D.C. Circuit has already noted, the district court failed to make the appropriate findings in issuing its order enjoining operation. The law requires a court weighing such a permanent injunction to find not only that the plaintiff is likely to succeed on the merits but also that continued operation is likely to cause irreparable injury to the plaintiff, that economic harm suffered by the enjoined party is outweighed by this likely injury, and that the public interest will not be disserved.¹⁰⁸ The district court’s error, and the D.C. Circuit’s recognition of that error, make the original order of little utility to other litigants attempting to accomplish the same feat. The question of the continued operation of the pipeline is back before the district court for appropriate findings, with a decision possible by the end of 2020.¹⁰⁹

Conclusion

The Corps’ decisions related to infrastructure projects have been the subject of litigation for decades under various environmental statutes, and nongovernmental organizations (NGOs) continue to achieve some success with evolving and targeted legal claims. Given the complexity of legal issues implicated under the ESA and NEPA, project proponents cannot afford to sit on the sidelines, and certainly not in the complex litigation surrounding their own projects. And with the fast-paced developments, it is important that advocates maintain familiarity with the latest decisions and argument strategies. Engagement and familiarity will enable counsel to help project developers assess legal risk, make informed decisions, and even strategize alternatives to seeking Corps authorizations that may be most vulnerable—whether, for example, by choosing to pursue an individual permit rather than using an NWP or by designing a project to avoid impacts within the Corps’ jurisdiction.

But we may also be on the cusp of a new era in this type of litigation related to increasing emphasis on renewable sources of energy. Although the production and transportation or transmission of fossil fuels—and the projects that make those things possible—have for some time been quite controversial, we may also see another wave of litigation against burgeoning renewable energy infrastructure projects such as utility-scale solar installations and wind farms and the associated transmission facilities necessary to support them. The front lines might not look the same, as NGOs focused on species conservation and wildlife protections might oppose a wind farm or solar installation. Property owners near those installations may also allege impacts. And NGOs that prioritize climate change issues may intervene on the Corps’ side to protect the types of projects they favor. In other words, energy diversification may lead to a litigation transition as various NGOs realign to support or oppose different kinds of projects and the infrastructure that supports them. Such a transition would make use of the litigation strategies and doctrines discussed above but would undoubtedly raise new interpretive questions on their own.

Endnotes

1. Complaint, N. Plains Res. Council v. U.S. Army Corps of Engineers, No. CV 19-44-GF-BMM (D. Mont. July 1, 2019).

2. N. Plains Res. Council, No. 4:19-cv-00044 (D. Mont. Apr. 15, 2020) (order vacating NWP 12).

3. Appellants’ Motion for Emergency Stay, N. Plains Res. Council v. U.S. Army Corps of Eng’rs, No. 20-35412 (9th Cir. May 13, 2020).

4. Order in Pending Case, U.S. Army Corps of Eng’rs v. N. Plains Res. Council, No. 19A253 (U.S. July 6, 2020).

5. Complaint, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4 (D.D.C. July 27, 2016).

6. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 440 F. Supp. 3d 1 (D.D.C. 2020).

7. Cheyenne River Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-1534, 2020 WL 3634426 (D.D.C. July 6, 2020).

8. Standing Rock Sioux Tribe v. U.S. Army Corps of Engr’s, No. 20-5197, 2020 WL 4548123 (D.C. Cir. Aug. 5, 2020).

9. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-1534 (D.D.C. 2020) (filed Aug. 31, 2020).

10. 33 U.S.C. § 1344(e)(1).

11. 33 C.F.R. § 330.1(b).

12. The NWPs are also used to authorize activities subject to regulation under section 10 of the Rivers and Harbors Act, which prohibits the unauthorized obstruction or alteration of any navigable water. 33 U.S.C. § 403. NWP 12 is one such permit.

13. 82 Fed. Reg. 1,860, 1,985 (Jan. 6, 2017).

14. On September 15, 2020, the Corps issued a new round of proposed NWPs in which it proposed dividing “NWP 12 into three separate NWPs to address the differences in how different linear projects are constructed, the substances they convey, and the different standards and best management practices.” These changes are meant to “simplify and clarify the NWPs, reduce the burden on the regulated public, and continue to comply with the statutory requirement that these NWPs authorize only activities with no more than minimal individual and cumulative adverse environmental effects.” Proposal to Reissue and Modify Nationwide Permits, 85 Fed. Reg. 57,298 (Sept. 15, 2020).

15. 82 Fed. Reg. 1,860, 1,998–2,005 (Jan. 6, 2017).

16. Id. at 1,873 (emphasis added).

17. Id. (emphasis added).

18. 16 U.S.C. § 1536(a)(2).

19. 82 Fed. Reg. at 1,873.

20. Id.

21. Id.

22. See id.

23. Id.

24. See 50 C.F.R. § 402.12.

25. Id. § 402.14(a).

26. Id. § 402.14(h).

27. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.14(g)(4), (h).

28. 82 Fed. Reg. 1,860, 1,985.

29. Exec. Order No. 13337 (Apr. 30, 2004) (“Issuance of Permits with Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States”).

30. Press Release, White House, Statement by the President on the Keystone XL Pipeline (Nov. 6, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/11/06/statement-president-keystone-xl-pipeline.

31. Presidential Memorandum, Construction of the Keystone XL Pipeline, 82 Fed. Reg. 8,663 (Jan. 24, 2017); U.S. Dep’t of State, Record of Decision and National Interest Determination (Mar. 23, 2017); https://www.state.gov/keystone-pipeline-xl.

32. Indigenous Envt’l Network & N. Coast River Alliance & Northern Plains Res. Council v. U.S. Dep’t of State, No. CV-17-29-GF-BMM (D. Mont. Nov. 8, 2018) (order vacating record of decision).

33. Presidential Permit of March 29, 2019, Authorizing TransCanada Keystone Pipeline, L.P. to Construct, Operate, and Maintain Pipeline Facilities Between the United States and Canada, 84 Fed. Reg. 13,101 (Apr. 3, 2019).

34. Complaint, N. Plains Res. Council v. U.S. Army Corps of Eng’rs, No. 4:19-cv-00044 (D. Mont.) (July 1, 2019); Amended Complaint, N. Plains, No. 4:19-cv-00044 (Sept. 10, 2019).

35. The project proponent’s PCNs, seeking verification under NWP 12, remain pending with the Corps. Federal Appellants’ Opening Brief at 15, N. Plains Res. Council v. U.S. Army Corps of Eng’rs, No. 20-35412 (9th Cir. Aug. 26, 2020) 9th Cir. 2020).

36. N. Plains Res. Council, No. 4:19-cv-00044 (D. Mont. Apr. 15, 2020), (order vacating NWP 12).

37. N. Plains Res. Council, No. 4:19-cv-00044 (D. Montana May 11, 2020) (order amending summary judgment order).

38. The plaintiffs also argued that the Corps violated NEPA by failing to adequately evaluate the direct, indirect, and cumulative impacts associated with the project under NWP 12 and violated the CWA by not ensuring that NWP 12 will prevent so-called linear projects that cause more than minimal adverse environmental impacts. Plaintiffs’ Motion for Summary Judgment at 1–2, N. Plains Res. Council v. U.S. Army Corps of Eng’rs, No. 4:19-cv-00044( D. Mont. Nov. 22, 2019). Judge Morris declined to address these issues, noting that the changes required under his ESA ruling would alter the Corps’ NEPA and CWA determinations.

39. Id. at 2.

40. Brief for Federal Defendants at 11–12, N. Plains Res. Council, No. 4:19-cv-00044 ((Dec. 23, 2019).

41. Brief for Federal Defendants, N. Plains Res. Council, No. 4:19-cv-00044.

42. TC Energy’s Motion for Summary Judgment at 14, 19, 22, N. Plains Res. Council, No. 4:19-cv-00044 ((D. Mont., Dec. 23, 2019).

43. N. Plains Res. Council, No. 4:19-cv-00044 (D. Mont. Apr. 15, 2020) (order vacating NWP 12).

44. Id.

45. Id. at 21 (emphasis added). The court did not address the CWA and NEPA claims, explaining that the Corps would likely need to modify its determinations under those statutes as a result of its ESA consultations. Id. at 22.

46. N. Plains Res. Council, No. 4:19-cv-00044 (May 11, 2020) (order amending summary judgment order).

47. Id.

48. Appellants’ Motion for Emergency Stay, N. Plains v. U.S. Army Corps of Eng’rs, No. 20-35412 (9th Cir. May 13, 2020)).

49. Ellen Gilmer, Justices Revive Fast Pipeline Permits, Not for Keystone XL, Bloomberg L. (July 6, 2020).

50. Kevin Orland, TC Energy Sees Path to Start Keystone XL Construction Despite Supreme Court Ruling, Fin. Post (July 30, 2020), https://financialpost.com/commodities/energy/tc-sees-path-for-keystone-xl-work-despite-supreme-court-ruling/wcm/48ae4579-49f3-41d0-aade-d31bff7a0325.

51. Matt Viser & Dino Grandini, Biden Campaign Says He Would Revoke Permit for Keystone Pipeline, Wash. Post (May 18, 2020).

52. Proposal to Reissue and Modify Nationwide Permits, 85 Fed. Reg. 57,298, 57,357 (Sept. 15, 2020).

53. Dakota Access, LLC, Draft Environmental Assessment: Dakota Access Pipeline (Nov. 2015), https://docs.house.gov/meetings/IF/IF03/20170215/105567/HHRG-115-IF03-20170215-SD036.pdf.

54. Id.

55. Dakota Access Pipeline, U.S. Army Corps of Eng’rs, https://www.usace.army.mil/Dakota-Access-Pipeline (last visited Aug. 29, 2020).

56. Frequently Asked Questions DAPL, U.S. Army Corps of Eng’rs, https://www.nwo.usace.army.mil/Media/Fact-Sheets/Fact-Sheet-Article-View/Article/749823/frequently-asked-questions-dapl (last visited Sept. 17, 2020).

57. 40 C.F.R. § 1500.1(b).

58. See 42 U.S.C. § 4321.

59. Id. § 4332(C).

60. Id.

61. 40 C.F.R. §§ 1501.4(b), 1508.9.

62. Id.

63. Id.

64. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).

65. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

66. Dakota Access, LLC, supra note 53; Letter from Field Archaeologists, U.S. Army Corps of Eng’rs, to Fern Swenson, Deputy State Hist. Pres. Off., N.D. Hist. Soc’y (Apr. 22, 2016), https://assets.documentcloud.org/documents/3463182/Exhibit-29-Letter-April222016.pdf.

67. U.S. Army Corps of Eng’rs, Mitigated Finding of No Significant Impact, Environmental Assessment, Dakota Access Pipeline Project (July 2016), https://www.documentcloud.org/documents/3460832-DAPL-EnviroAssessment-July252016.html.

68. Spiller v. White, 352 F.3d 235, 239 (5th Cir. 2003).

69. U.S. Army Corps of Eng’rs, supra note 67, at 3.

70. Id. at 6.

71. Complaint at 2, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4 (D.D.C. 2016) (July 27, 2016); Motion for Preliminary Injunction & Request for Expedited Hearing, Standing Rock Sioux Tribe, 205 F. Supp. 3d 4 (Aug. 4, 2016).

72. Standing Rock Sioux Tribe, 205 F. Supp. 3d 4.

73. Id.

74. See Press Release, U.S. Dep’t of Justice, Joint Statement from the Department of Justice, the Department of the Army, and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Sept. 9, 2016), https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing.

75. Julia Carrie Wong, Standing Rock Protest: Hundreds Clash with Police over Dakota Access Pipeline, Guardian (Nov. 21, 2016), https://www.theguardian.com/us-news/2016/nov/21/standing-rock-protest-hundreds-clash-with-police-over-dakota-access-pipeline.

76. Chiara Sottile, Dakota Access Pipeline Fight Watched on Facebook Live Around World, NBC News (Nov. 5, 2016), https://www.nbcnews.com/storyline/dakota-pipeline-protests/dakota-access-pipeline-fight-watched-facebook-live-around-world-n678366.

77. Memorandum from Jo-Ellen Darcy, Assistant Sec’y of the Army, to Commander, U.S. Army Corps of Eng’rs, Proposed Dakota Access Pipeline Crossing at Lake Oahe, N.D. 3 (Dec. 4, 2016), https://api.army.mil/e2/c/downloads/459011.pdf.

78. Memorandum from President Donald J. Trump to the Sec’y of the Army, Construction of the .Dakota .Access .Pipeline (Jan. 24, 2017), https://earthjustice.org/sites/default/files/files/Construction-of-the-Dakota-Access-Pipeline.pdf.

79. Id.

80. Memorandum from Douglas W. Lamont, Acting Assistant Sec’y of the Army, Compliance with Presidential Memorandum of January 24, 2017 (Feb. 7, 2017), https://earthjustice.org/sites/default/files/files/Memo-Feb7-0.pdf.

81. Plaintiff Standing Rock Sioux Tribe’s Memorandum in Support of Its Motion for Partial Summary Judgment, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-1534-JEB (D.D.C. 2017) (Feb. 14, 2017), https://earthjustice.org/sites/default/files/files/Memo-ISO-SRSTs-Mtn-for-PSJ.pdf.

82. Id. at 11.

83. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101 (D.D.C. 2017).

84. Id. at 147.

85. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 282 F. Supp. 3d 91, 94 (D.D.C. 2017).

86. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 440 F. Supp. 3d 1, 11, 8 (D.D.C. 2020).

87. Id.

88. Id. at 26.

89. Id. at 1.

90. See Cheyenne River Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-1534, 2020 WL 3634426 (D.D.C. July 6, 2020).

91. Id. at *10.

92. See Dakota Access, LLC’s Emergency Motion for Stay Pending Appeal, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 20-5197, 2020 WL 4548123 (D.C. Cir. Aug. 5, 2020) (July 10, 2020), https://www.eenews.net/assets/2020/07/14/document_ew_01.pdf.

93. Standing Rock Sioux Tribe v. U.S. Army Corps of Engr’s, No. 20-5197, 2020 WL 4548123 (D.C. Cir. Aug. 5, 2020). On remand, Judge Boasberg will again have the opportunity to consider whether injunctive relief is appropriate.

94. Id.

95. Id.

96. Status Report at 6, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-1534 (D.D.C. 2020) (filed Aug. 31, 2020).

97. Id. at 4.

98. Id. at 7.

99. “Essayons” the Corps’ motto, is French for “Let Us Try.” Historical Vignette 009: How the U.S. Army Corps of Engineers Became a Major Army Command, U.S. Army Corps of Eng’rs, https://www.usace.army.mil/About/History/Historical-Vignettes/General-History/009-Major-Command (last visited Oct. 10, 2020).

100. 85 Fed. Reg. 57,298 (Sept. 15, 2020).

101. Optimus Steel, LLC v. U.S. Army Corps of Eng’rs, No. 1:20CV00374 (E.D. Tex. 2020); City of Austin v. Kinder Morgan Tex. Pipeline, LLC, No. 1:20CV00138 (W.D. Tex. 2020); Sierra Club v. U.S. Army Corps of Eng’rs, No. 1:20CV00460 (W.D. Tex. 2020).

102. 85 Fed. Reg. 43,304 (July 16, 2020).

103. 916 F.3d 1075 (D.C. Cir.), amended on reh’g, 925 F.3d 500 (D.C. Cir. 2019).

104. Cheyenne River Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-1534, 2020 WL 3634426 (D.D.C. July 6, 2020). The applicable regulations directed agencies to consider the “degree to which the effects [of the agency’s action] . . . are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4).2. Highly controversial refers to “a substantial dispute” about “the size, nature, or effect of the major federal action.” Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003). Controversy does not refer to the “existence of opposition to a use.” Id.

105. 85 Fed. Reg. 43,304, 43,372.

106. Id. at 43,322.

107. See, e.g., Wild Virginia v. Council on Envtl. Quality, No. 3:20-cv-00045 (W.D. Va. filed July 29, 2020); Alaska Cmty. Action on Toxics v. Council on Envtl. Quality, No. 3:20-cv-5199 (N.D. Cal. filed July 29, 2020).

108. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).

109. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 20-5197, 2020 WL 4548123 (D.C. Cir. Aug. 5, 2020).